Exhibit 10.40


 


MASTER LEASE


 


BETWEEN


 


THE CITY OF BOONVILLE, MISSOURI


 


AND


 


DAVIS GAMING BOONVILLE, INC.


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE 1

  	
  LEASED PREMISES

  	
  2

  
	
  1.1

  	
  Leased Premises

  	
  2

  
	
  1.2

  	
  Permitted Use

  	
  2

  
	
  1.3

  	
  Physical Condition

  	
  2

  
	
  1.4

  	
  Lease Term

  	
  2

  
	
  1.5

  	
  Designation of Home Dock

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
  DEVELOPMENT AND CONSTRUCTION

  	
  3

  
	
  2.1

  	
  General

  	
  3

  
	
  2.2

  	
  Construction of Improvements

  	
  3

  
	
  2.3

  	
  Riverboat Gaming Project Site
  Plan

  	
  3

  
	
  2.4

  	
  Project Site

  	
  3

  
	
  2.5

  	
  Construction of the Land Based
  Project

  	
  4

  
	
  2.6

  	
  Critical Path

  	
  6

  
	
  2.7

  	
  Project Engineer; Project
  Architect

  	
  7

  
	
  2.8

  	
  Stoppage of Construction
  by the City

  	
  7

  
	
  2.9

  	
  Completion of the Land Based
  Project

  	
  7

  
	
  2.10

  	
  Access to the Riverboat Gaming
  Project and Inspection

  	
  8

  
	
  2.11

  	
  Licenses and Permits

  	
  8

  
	
  2.12

  	
  Additional Improvements

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
  RENT AND OTHER COSTS

  	
  9

  
	
  3.1

  	
  Rent

  	
  9

  
	
  3.2

  	
  Rebate of Rent

  	
  9

  
	
  3.3

  	
  Costs

  	
  10

  
	
  3.4

  	
  Net Lease

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
  OPERATIONS AND USE

  	
  10

  
	
  4.1

  	
  Operations

  	
  10

  
	
  4.2

  	
  Use of the Project Site

  	
  11

  
	
  4.3

  	
  Traffic

  	
  11

  
	
  4.4

  	
  Employment

  	
  11

  
	
  4.5

  	
  Security/Safety

  	
  11

  
	
  4.6

  	
  Thespian Hall

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
  REPAIRS AND MAINTENANCE

  	
  12

  
	
  5.1

  	
  Maintenance and Repairs

  	
  12

  
	
  5.2

  	
  Maintenance Reserve Fund

  	
  12

  
	
  5.3

  	
  No Services Furnished

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
  INSURANCE

  	
  13

  
	
  6.1

  	
  Insurance Coverages

  	
  13

  
	
  6.2

  	
  Named Insureds

  	
  14

  
	
  6.3

  	
  Waiver of Subrogation and Release

  	
  14

  
	
  6.4

  	
  Cancellation/Modification
  Notice

  	
  14

  



 


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  ARTICLE 7

  	
  INDEMNIFICATION

  	
  14

  
	
  7.1

  	
  Indemnification of the City

  	
  14

  
	
  7.2

  	
  Indemnification of Tenant

  	
  15

  
	
  7.3

  	
  Notification

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
  TAKING AND DESTRUCTION OF
  PROJECT SITE

  	
  15

  
	
  8.1

  	
  Taking of Facilities

  	
  15

  
	
  8.2

  	
  Destruction of Riverboat Gaming
  Project

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
  COMPLIANCE WITH LAWS

  	
  16

  
	
  9.1

  	
  General Compliance

  	
  16

  
	
  9.2

  	
  Environmental Matters

  	
  16

  
	
   

  	
  9.2.1

  	
  Negative Covenants

  	
  16

  
	
   

  	
  9.2.2

  	
  Removal

  	
  16

  
	
   

  	
  9.2.3

  	
  Notification

  	
  17

  
	
   

  	
  9.2.4

  	
  Definitions

  	
  17

  
	
   

  	
  9.2.5

  	
  Survival

  	
  18

  
	
  9.3

  	
  Inspection Rights

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
  IMPOSITIONS AND CONTEST

  	
  18

  
	
  10.1

  	
  Impositions

  	
  18

  
	
  10.2

  	
  Furnished Receipts

  	
  18

  
	
  10.3

  	
  Utilities

  	
  18

  
	
  10.4

  	
  Protection against Lien Claims

  	
  19

  
	
  10.5

  	
  Contest of Liens, Laws and Taxes

  	
  19

  
	
  10.6

  	
  City Joinder In Contest

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
  THE CITY’S PERFORMANCE OF TENANT’S COVENANTS

  	
  20

  
	
  11.1

  	
  The City’s Right to Perform

  	
  20

  
	
  11.2

  	
  Repayment by Tenant

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
  TERMINATION

  	
  20

  
	
  12.1

  	
  Termination Events

  	
  20

  
	
  12.2

  	
  Surrender and Delivery of the Project Site

  	
  22

  
	
  12.3

  	
  Personal Property Not Removed

  	
  22

  
	
  12.4

  	
  The City Not Responsible

  	
  22

  
	
  12.5

  	
  Restoration

  	
  22

  
	
  12.6

  	
  Survival

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  	
  DEFAULT AND REMEDIES

  	
  23

  
	
  13.1

  	
  Default

  	
  23

  
	
  13.2

  	
  Remedies

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14

  	
  BANKRUPTCY

  	
  25

  
	
  14.1

  	
  Events of Bankruptcy

  	
  25

  
	
  14.2

  	
  The City’s Remedies

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15

  	
  ASSIGNMENT/SUBLEASE/ENCUMBRANCE

  	
  27

  
	
  15.1

  	
  Assignment, Subletting and Other Transfers

  	
  27

  
	
  15.2

  	
  Limited Right to Encumber Leasehold Interest

  	
  29

  



 


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  ARTICLE 16

  	
  COVENANTS

  	
  35

  
	
  16.1

  	
  Covenants By the City

  	
  35

  
	
  16.2

  	
  Covenants By Tenant

  	
  36

  
	
   

  	
  16.2.1

  	
  Enforceability

  	
  36

  
	
   

  	
  16.2.2

  	
  Power and
  Authority

  	
  36

  
	
   

  	
  16.2.3

  	
  No
  Conflicts

  	
  36

  
	
   

  	
  16.2.4

  	
  Financial
  Condition

  	
  36

  
	
   

  	
  16.2.5

  	
  No
  Contract Defaults

  	
  36

  
	
   

  	
  16.2.6

  	
  No Litigation

  	
  36

  
	
   

  	
  16.2.7

  	
  Opinion of
  Counsel

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE 17

  	
  GENERAL PROVISIONS

  	
  37

  
	
  17.1

  	
  Notices

  	
  37

  
	
  17.2

  	
  Police Power Limitation

  	
  38

  
	
  17.3

  	
  Failure to Perform By the City

  	
  38

  
	
  17.4

  	
  No Liability

  	
  38

  
	
  17.5

  	
  Force Majeure

  	
  39

  
	
  17.6

  	
  Certificates

  	
  39

  
	
  17.7

  	
  Waiver of Jury Trial and
  Counterclaims

  	
  .39

  
	
  17.8

  	
  Binding Effect

  	
  39

  
	
  17.9

  	
  No Joint Venture Or Partnership

  	
  39

  
	
  17.10

  	
  Attorneys Fees

  	
  40

  
	
  17.11

  	
  Governing Law

  	
  40

  
	
  17.12

  	
  Amendments

  	
  40

  
	
  17.13

  	
  Entire Agreement

  	
  40

  
	
  17.14

  	
  Multiple Originals

  	
  40

  
	
  17.15

  	
  Severability

  	
  40

  
	
  17.16

  	
  Interpretation

  	
  40

  
	
  17.17

  	
  Waiver

  	
  40

  
	
  17.18

  	
  Memorandum of Lease

  	
  41

  



 


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MASTER.LEASE



 BETWEEN



 THE CITY OF BOONVILLE, MISSOURI



 AND



 DAVIS GAMING BOONVILLE, INC.,


 


THIS LEASE
(this “Lease”) is made on July 18, 1997 by the City of Boonville,
Missouri, a Missouri third class city (the “City”) and Davis Gaming Boonville, Inc.
(f/k/a Gold River’s Boonville, Resort, Inc.) a
Nevada corporation (“Tenant”).


 


The City and
Tenant entered into a Master Agreement for Boonville, Missouri Riverboat Gaming
Project dated March 7, 1994 and
an Amendment to Master Agreement for Boonville, Missouri Riverboat Gaming
Project dated November 10, 1994, a Second Amendment to Master Agreement dated May 1, 1995, a Third Amendment to Master Agreement
and Amendment to Development Agreement dated February 5, 1996, all as amended and restated pursuant to an Amended
and Restated Master Agreement dated as of July 18, 1997 (collectively the “Master
Agreement”) for the development of the Riverboat Gaming Project on the Project
Site, a map of which is attached as Exhibit A.


 


Under the
Master Agreement, Water Street
or Tenant is to acquire the Project Site and transfer the Project Site, as
acquired, to the City and construct the Land Based Project pursuant to the Master
Agreement and this Lease. The
City is to lease the Project Site to Tenant pursuant to this Lease.


 


Any
capitalized term used in this Lease and not defined in this Lease shall have the same meaning
given, such term in the Master Agreement except that
the term “Project Site” shall for purposes of this Lease only refer to that portion of the Project Site as defined in the Master Agreement which is
actually acquired by Tenant and transferred to the City. It is intended that
for purposes of this Lease, the Project Site shall change as additional
property is acquired and transferred to the City by Tenant under the Master Agreement and references to Project Site shall refer to only
those parcels
of property otherwise within the
entire Project Site as contemplated in the Master Agreement and that at the
time have been transferred to or are owned by the City.


 

















 


ARTICLE 1
 LEASED PREMISES


 


1.1           Leased Premises. The City leases to Tenant, and Tenant leases
from the City, the Project Site, as it may exist from time to time, when
acquired by the Tenant or Water Street and conveyed to the City. The legal description of the Project Site as of the date of
this Lease is attached as Exhibit B. As additional parcels become part of the Project Site, the legal description
of such parcels will be added to Exhibit B. The parties acknowledge that, in accordance with Section 1.3 of the
Master Agreement, the City’s rights in the Railroad Portion may arise under the
Railroad Lease or by acquisition and that the City’s rights in the DNR Portion
may arise under the DNR Lease or by acquisition. The parties acknowledge that
the City does not currently own
the entire Project Site and that it is the
sole responsibility of Tenant and Water Street to acquire and transfer the Project Site to the
City, but only to the extent
required under the Master Agreement.


 


1.2           Permitted Use. The sole permitted use of the Project Site is the construction and operation of an
integrated gaming and entertainment facility. Tenant will operate the Riverboat
Gaming Project
in a manner consistent with (i) the
terms of the Master Agreement and this Lease, and (ii) all applicable laws, rules and
regulations.


 


1.3           Physical Condition. Except as otherwise provided in this Lease, - Tenant accepts the Project Site, as
is, without any representations or warranties of any kind by the City.


 


1.4           Lease Term. The term (the “Term”) of this Lease shall
commence on the date hereof (the “Commencement Date”) and unless terminated
earlier, pursuant to this Lease, shall expire on the date (the “Expiration Date”)
ninety-nine (99) years after the Commencement Date, except that with respect to
those parts of the Subleased Portions which are subject to a Prime Lease, if
the Prime Lease for such Subleased Portion is earlier terminated, then the
Expiration Date with regard only to such Subleased Portion shall be the date on
which the Prime Lease for such Subleased Portion terminates. For purposes of
this Lease and the Project Documents, the
term “Opening Date” shall mean the date on which the Missouri Gaming Commission
first issues a license to Tenant to open the Riverboat/Floating Facility for business to
the public.


 


1.5           Designation of Home Dock.  Pursuant to all applicable Missouri gaming laws, including but not
limited to Chapter 313, RSMo., Tenant designates the City as its sole and
exclusive “home dock” (as that term is defined in Chapter 313, RSMo, as
amended). This designation shall not prevent the temporary docking of the
Riverboat/Floating Facility at another location if the Project Site is damaged during
the period of repairs as long as
Tenant is using its best efforts to complete such repairs as expeditiously as


 


2

















 


possible, nor shall this designation prevent
Tenant from acquiring additional riverboats and designating different home
docks for the different boats.


 


ARTICLE 2
 DEVELOPMENT AND CONSTRUCTION


 


2.1           General. Tenant will, at its sole cost, develop the Riverboat
Gaming Project pursuant to the Project Documents and in the Phases set forth herein. The parties
acknowledge that the Phases or any combination thereof may be pursued in whole
or in part concurrently.


 


2.2           Construction of Improvements. Construction of all improvements in accordance with the Project Documents (including
all exhibits and attachments to the Project Documents) is a condition of this
Lease.


 


2.3           Riverboat Gaming
Project Site Plan.
Tenant, at its cost, will
prepare plans and specifications for the Riverboat Gaming Project and the Land Based Project (the “Riverboat Gaming Project Site Plan”),
including all buildings, infrastructure and other construction, consistent with the Project Documents. Tenant
will submit the Riverboat Gaming Project. Site Plan for review and
approval by the City. Prior to the date Tenant commences construction of the
Riverboat Gaming Project, the Riverboat Gaming Project Site Plan will be
attached to this Lease as Exhibit C and thereby made a part of this
Lease, subject to subsequent revisions as are approved by the City in its
reasonable discretion in the event of any substitution between the Preferred
Site Configuration and the Alternate Site Configuration. The construction of
the Riverboat Gaming Project will be completed substantially in accordance with
the Riverboat Gaming Project Site Plan and all applicable laws, rules and
regulations. Tenant will obtain the written approval of the City before making
any material changes in the Riverboat Gaming Project Site Plan. The City agrees to act promptly and reasonably with
respect to all requests for approval of the Riverboat Gaming Project Site Plan
and/or modifications thereof.


 


2.4           Project
Site. Tenant, with the City’s assistance, at Tenant’s sole cost, will
prepare all plats, obtain all vacation of streets, easements, construction
permits, floor plans, certificates, utility consents for relocation of
utilities, surveys and perform all other actions necessary for the development
and operation of the Riverboat Gaming Project. Tenant will grant to the City,
in a form which is reasonably acceptable to Tenant and the City, all easements reasonably requested by the
City with respect to the Project Site and normally granted to a City in a development. All streets within the
Project Site shall be public streets provided that all land up to the curb line
will remain, pursuant to this Lease, leased to Tenant.


 


3

















 


2.5           Construction of the
Land Based Project.


 


2.5.1      Tenant
will complete construction of the Land Based Project in two phases, Phase I/II
and Phase III.


 


2.5.1.1           INTENTIONALLY DELETED


 


2.5.1.2           No later than June 23, 1997, Tenant
will fund the Acquisition Escrow Account (as provided in the Acquisition Escrow
Agreement) in the amount provided for in Section 2.5.2 of the Master
Agreement. No later than the date on which Tenant begins construction of Phase
I/II, Tenant will place into the Construction Escrow Account the sum of One
Million Dollars ($1,000,000). During Phase I/II, and in all event (but subject
to Section 17.5) no later than April 3, 2001, Tenant will (i) acquire
and/or complete construction of the Riverboat/Floating Facility; (ii) complete
the acquisition of the Project Site; and (iii) complete the construction
of Phase I/II in accordance with the Project Documents and the final Riverboat
Gaming Project Site Plan.


 


2.5.1.3           Phase
III will occur in accordance with the terms
hereof on an ongoing basis as cash for capital expenditures is generated from
operations; provided, however, Phase III must be completed, subject to the provisions of Section 17.5 of
this Lease, no later than April 3, 2000. Before proceeding with any Phase
III Project Increments, Tenant will, pursuant to the Construction Escrow Agreement,
fund the Construction Escrow Account with respect to the applicable Project
Increment to the extent not then completed. Tenant, will allocate three and one half percent (3.5%) (“Applicable
Gross Revenues”) of the gross revenues (“Gross Revenues”) from the Riverboat
Gaming Project to pay for the Project Increments and will, within twenty days
after each March 31, June 30, September 30 and December 31
occurring between the Opening Date and the date on which the Construction  Escrow
Account has been fully funded with respect to all of the Project Increments not
then completed, deposit into the Construction Escrow Account the full amount of
the Applicable Gross Revenues realized during the calendar quarter then ended.
Tenant will provide to the City copies of all reports filed with the Missouri
Gaming Commission relating to Gross Revenues as well as monthly financial statements and yearly audited
financial statements for the Riverboat Gaming Project. Once the allocated and
Applicable Gross. Revenues are sufficient to fund a Project Increment, the
construction of which at such time is then appropriate in Tenant’s


 


4

















 


reasonable  business  judgment  for  the  overall  benefit  of  the  Riverboat  Gaming  Project,  Tenant  shall  submit  and  diligently  pursue  the  building  or  other  applicable  permit.  No  later  than  thirty  (30)  days  after  the  issuance  of  a  building  or  other  applicable  permit  from  the  City  of  Boonville  to  construct  a  Project  Increment,  Tenant  shall  (i)  fund  the  Construction  Escrow  Account  as  provided  in  the  Construction  Escrow  Agreement  to  the  extent  not  then  fully  funded  with  respect  to  such  Project  Increment  from  deposits  of  Applicable  Gross  Revenues  (it  being  understood  that  in  all  events  and  regardless  of  insufficient  Applicable  Gross  Revenues,  Phase  III  must  be  completed,  including  payment  in  full  of  the  Additional  Payment,  subject  to  Section  17.5,  no  later  than  April  3,  2000);  (ii)  enter  into  Construction  Contracts  with  contractors  reasonably  acceptable  to  the  City;  and  (iii)  commence  construction  of  such  Project  Increment.  This  procedure  will  be  repeated  with  respect  to  all  Project  Increments.  Without  affecting  the  obligation  of  the  Developer  to  complete  Phase  III  no  later  than  April  3,  2000,  including  payment  in  full  of  the  Additional  Payment,  subject  to  Section  17.5,  in  the  event  that  all  of  the  Project  Increments  have  been  completed  other  than  payment  of  the  Additional  Payment,  the  funds  thereafter  from  time  to  time  on  deposit  in  the  Phase  III  Construction  Escrow  Subaccount  shall  be  disbursed  to  the  City  as  installments  of  the  Additional  Payment  on  each  April  30,  July  31,  October  31,  and  January  31  until  the  Additional  Payment  has  been  paid in full.


 


2.5.2       Tenant will not commence construction of
any portion of the Land Based Project or any Project Increment until the
following conditions have been satisfied or waived with respect to such portion
or Project Increment by the City, in addition to any other conditions and
requirements imposed by this Lease or the Project Documents:


 


2.5.2.1     the City approves the Riverboat Gaming
Project Site Plan;


 


2.5.2.2     INTENTIONALLY DELETED


 


2.5.2.3     Tenant has funded the Construction Escrow
Account in the amount of $1,000,000 and has obtained all payment, performance
and completion bonds in form and amount approved by the City as required under Article 6
of this Lease;


 


2.5.2.4     Tenant has obtained all permits and other
governmental approvals necessary to commence construction;


 


5

















 


2.5.2.5     Tenant has provided to the City copies of the
contract with each of its contractors. In addition, but not as a condition of commencement of construction,
Tenant shall provide to the City a copy of each
subcontractor’s contract within ten (10) days of receipt by Tenant of each
contract;


 


2.5.2.6     the Commencement Date has occurred;


 


2.5.2.7     the applicable portions of the Project Site
have been transferred to the City; and


 


2.5.2.8     the contracts (the “Contracts”) with any architect,
other design professional and any general contractor shall provide, in form and
substance reasonably satisfactory to the City, for the assignment of the
Contracts to the City as
security to the City for Tenant’s performance under this Lease, and Tenant
shall provide the City copies of the Contracts, together with the further
agreement of the respective parties to such Contracts,
that if this Lease is terminated, the City may,
at its election, use the Riverboat Gaming Project Site Plan as well as any other plans
and specifications relating to
the Land Based Project upon the payment
of any future sums due to any party to the Contract. Tenant conditionally
assigns the Contracts and the Riverboat Gaming Project Site Plan to the City, effective upon the termination of this
Lease and notice by the City of
its exercise of such assignment. Such assignment is self-operative upon the
City giving such notice without requirement of further action or documentation
by the parties.
Notwithstanding anything to the contrary contained in this Section 2.5.2.8, a “Lender”
(as defined in Article 15 below) shall not be prohibited from possessing a security interest in the Contracts during the term of a “Leasehold Encumbrance” (as defined in Article 15 below) as long as the City’s rights are superior to Lender’s rights if and when this Lease terminates.


 


2.6           Critical Path.


 


2.6.1        Simultaneously with the funding of the Construction
Escrow Account, Tenant will
provide a “Phase I/II Critical Path” to the City which will set forth the projected start date of each
improvement in the Phase I/II Land
Based Project and the Riverboat/Floating Facility, the manner in which each
improvement in the Phase I/II Land Based Project and the Riverboat/Floating Facility will be
constructed and a projected completion date for each improvement in the Phase I/II Land Based
Project and the Riverboat/Floating Facility.


 


6
















 


2.6.2                        INTENTIONALLY DELETED


 


2.6.3                        Simultaneously with the funding of the
Construction Escrow Account for each Project Increment in the Phase III Land
Based Project, Tenant will provide the City a “Phase III Critical Path”, which
will set forth the projected start date for each such Project Increment, the
manner in which such Project Increment will be constructed and a projected
completion date for such Project Increment.


 


2.6.4                        Tenant shall have the right to modify the Critical Path(1) for each Phase of the Riverboat Gaming
Project with the City’s prior written consent which consent shall not be
unreasonably withheld or delayed.


 


2.7                                Project Engineer; Project Architect.  
Throughout the period of construction of the Land Based Project, the
Project Engineer and the Project Architect, engaged at Tenant’s sole cost, and
approved by the City, which approval may not be unreasonably withheld or
delayed, shall be retained on behalf of and for the benefit of Tenant and the
City, to monitor and check the progress of Tenant’s work on the Land Based
Project. The Project Engineer and the Project Architect will be given
reasonable access to the Project Site and all plans, specifications and other permits, documents and reports relating
to the construction of the Land Based Project.


 


2.8                                Stoppage of Construction by the City.   Where there is a material deviation from the Riverboat Gaming
Project Site Plan which has not been approved by the City, the City will have the right, after written notice to Tenant,
and failure to cure as provided in this Lease, to order stoppage of
construction and demand that such condition be corrected. After issuance of
such an order in writing by the City, no further work will be done on the
construction of the Land Based Project without the prior written consent of the
City, until such conditions have been substantially corrected.


 


2.9                                Completion of the
Land Based Project.


 


2.9.1                        Neither any portion of the Phase I/II Land
Based Project nor any Project Increment will be operated until the Project Engineer has certified the substantial completion of the
infrastructure (i.e. the streets, sewers, utilities, and parking lots) with
respect to such portion of the Phase I/II Land Based Project or Project
Increment, as the case may be, and the Project Architect certifies that such
portion or Project Increment has been substantially completed and the


 






(1)                                  The Phase I/II
Critical Path and the Phase III Critical Path are collectively referred to as
the “Critical Path.”


 


7

















 


City issues a temporary occupancy permit
(each such date shall be the “Completion Date” with respect to the work which
Tenant wishes to utilize).


 


2.9.2                        Upon completion of Phase I/II and each
respective Project Increment, Tenant will provide the City with a complete and
legible set of all as-built plans and specifications (including all operating
manuals for mechanical systems but excluding surveillance and security systems
and secure
or sensitive areas) regarding the same, as such plans and specifications may be amended from time to time, within thirty (30) days after such as-built plans
and specifications or amendments are received by Tenant. Notwithstanding the foregoing, the City, at its sole discretion, may permit operation of part of the Riverboat Gaming
Project prior to certification of substantial completion.


 


2.9.3                        Tenant agrees not to open the Riverboat
Gaming Project for business to the public until Phase I/II has been
substantially completed.


 


2.10                          Access to the
Riverboat Gaming Project and Inspection.  
Tenant will advise the city
regarding the progress of negotiating and contracting for the construction of
the Riverboat Gaming Project. The city and Tenant will meet on a mutually
agreeable day and time, at a mutually agreeable place, on a monthly basis to discuss the status of the Riverboat Gaming Project generally. Until the
construction of the Riverboat Gaming Project is completed, each party will
use its reasonable best efforts to keep the other informed as to the status of its efforts and all material
events occurring with respect to the Riverboat Gaming Project. The city or its duly appointed agents may, at all reasonable times, enter upon
the Project
Site and examine and inspect the
Riverboat Gaming Project.


 


2.11                          Licenses and
Permits.   Tenant will, using its best efforts, apply for and obtain all gaming licenses;
occupational permits and construction licenses and approvals necessary for the
Riverboat Gaming Project.


 


2.12                          Additional Improvements.   Tenant may not materially alter or (other
than as necessary for and as
directly related to required repairs) enlarge or structurally change any
improvements constructed in the Project Site or construct additional improvements on the Project Site
without the City’s prior written consent and approval of plans and
specifications for such changes or additions, which consent and approval will
not be unreasonably withheld or delayed.


 


8

















 


ARTICLE 3

RENT AND OTHER COSTS


 


3.1                                Rent.


 


3.1.1                        Notwithstanding anything to the contrary
contained in any Project Document, Tenant will pay a rent payment (the “Lump
Sum Rent”) of $1,700,000 to the City, as follows:


 


(1)                              the sum of Two Hundred Thousand Dollars
($200,000) has been paid, which the City acknowledges it has already received;
and


 


(2)                              the sum of One Million Five Hundred Thousand
Dollars ($1,500,000) shall be paid in two installments, as follows: (i) the
first installment (the “First Installment”) shall be in the amount necessary to
fund the design and/or engineering of the Traffic Improvements, and shall be
payable no later than ten (10) days after such amount has been determined
(and the parties acknowledge that
in partial payment of the First Installment, the Tenant has advanced to the
City the sum of One Hundred Fifty Thousand Dollars ($150,000)), and (ii) the
second installment shall be in the amount of One Million Five Hundred Thousand
Dollars ($1,500,000) less the First Installment (to the extent then previously
paid), and shall be payable on or before Tenant begins construction of Phase
I/II.


 


The Lump Sum Rent will be fully
earned by the City upon the dates due in consideration of the
lost opportunity to the City for alternative uses and development of the Project Site.


 


3.1.2                        Tenant’s payment of
the Lump Sum Rent pursuant to Section 3.1.1
is a condition of this Lease.


 


3.1.3                        Except as otherwise
expressly provided in this Lease,
Tenant shall be solely responsible for all obligations, including all monetary requirements under each Prime Lease.


 


3.1.4                        Other than the Lump Sum Rent and the rent
required in each Prime Lease, there shall be no other rent, percentage rent, or
any equivalent payment constituting rent or docking fees, other than Impositions (defined below) and the
Additional Payment (which is a Phase III Project Increment), required to be
paid to the City under this Lease.


 


3.2                                Rebate of Rent.   After the City has received Eight Hundred Thousand Dollars ($800,000) in
Fees (defined below), Tenant


 


9

















 


will receive a dollar for dollar rebate (the “Rebate”),
up to $200,000, of the Lump Sum Rent for every additional dollar which the City
receives from the admission fees (the “Fees”) paid with respect to each gaming
passenger of the Riverboat/Floating Facility pursuant to Section 313.820.1,
RSMo, or any subsequent section
of the Missouri statutes which imposes the same  or similar admission fee (regardless of how such admission fee is
identified), during the one-year period following the Opening Date. The City
shall pay the Rebate to Tenant within thirty (30) days of the City’s receipt of
the Fees from the State of Missouri. Except as provided by this Section 3.2,
Tenant shall not be entitled to any rebate, refund or proration of the Lump Sum
Rent for any reason.


 


3.3                                Costs.   Except as otherwise provided in
this Lease, the Riverboat Gaming Project will be developed and operated at the
sole cost of Tenant and the City will have no liability and. will bear no
expense whatsoever for any of the costs or expenses associated with the
Riverboat Gaming Project.


 


3.4                                Net Lease.  
After the Commencement Date, except as expressly provided in this Lease,
all costs, expenses and obligations of every kind and nature whatsoever
relating to the Project Site and/or the operation of the Riverboat Gaming
Project, which may arise or become due during or after the Term (but only with
respect to the period of time within the Term of this Lease), shall be paid by
Tenant, and the City shall be protected, defended, indemnified and held
harmless by Tenant from and against the payment of same and/or any obligation
or claimed obligation to pay the same.


 


ARTICLE 4

OPERATIONS AND USE


 


4.1                                Operations.  
Tenant will have the right (subject to the provisions of Article 12
of this Lease) and responsibility to continuously operate, subject to Section 17.5
of this Lease, the Riverboat Gaming Project in the manner set forth in this
Lease; provided, however Tenant may change the nature and character of the
businesses located within the Activity Center, in Tenant’s reasonable
discretion. Tenant will keep the non-enclosed areas of the Land Based Project
(including, without limitation, the amphitheater) open to the general public,
without charge, as an outdoor public area provided that Tenant shall have the
right to close the park areas after 11 p.m. and prior to 6 a.m. and
at other times for reasonable security and safety reasons. Tenant agrees and
acknowledges that the Riverboat Gaming Project is to be operated as an
integrated entertainment and gaming facility and that Tenant’s operation of the
Riverboat Gaming Project is part of the City’s consideration for selecting Tenant as operator of a riverboat casino
facility, granting urban redevelopment rights to Water Street and entering into this Lease,
the Master
Agreement and the other Project Documents.


 


10

















 


4.2                                Use of the Project Site.


 


4.2.1                        Tenant will conduct its gaming business, and
operate the Riverboat Gaming Project, in all respects in a quality manner and in accordance with the highest standards of operation
for similar businesses on the Missouri and Mississippi Rivers in Missouri. The
Riverboat Gaming Project will not be operated in any manner which is unlawful,
immoral or would constitute a nuisance. Toward that end, Tenant agrees that it will not sell,
distribute, display or offer to sell any item, or permit any subtenant,
licensee or concessionaire in the Project Site, to sell, distribute, display or offer to sell any item, which is
inconsistent with the quality of operation and the
ambiance and character of the Riverboat
Gaming Project, or which might tend to injure or detract from the moral
character or image of the Riverboat Gaming Project. Without limiting the
generality of the foregoing, Tenant will not permit the sale, distribution, display or offer for sale of (i) any roach clip, water pipe, toke,
coke spoon, cigarette papers, hypodermic syringe or other paraphernalia
commonly used in the use or ingestion of illicit drugs, or (ii) any
pornographic newspapers, books, magazines, films, performance pictures, video,
representation or merchandise of any kind.


 


4.2.2                        Tenant will, at its expense: (i) keep the Riverboat Gaming Project clean, including but not limited to the removal
of ice and snow from all streets, traffic ways, alleys, walkways, parking lots,
and other areas within the Project
Site reasonably requested by the City, and in a sanitary condition; (ii) replace
promptly any broken glass; and (iii) keep any garbage, trash, rubbish or other refuse in City approved containers until removed, which will be done on a
reasonable basis; and (iv) Tenant will, at its cost, use its reasonable
best efforts to keep the Riverboat Gaming Project free of rodents, vermin
and other pests.


 


4.3                                Traffic.  
Tenant and the City will agree upon a traffic flow plan which provides that traffic may gain access to the Riverboat
Gaming Project while minimizing the usage of the residential streets in the vicinity of the Project Site.


 


4.4                                Employment.  
Tenant will give preference to residents of and businesses located in
the City of Boonville as well as minority owned and women owned businesses with
respect to employment in connection with the
construction and operation of the Riverboat Gaming Project subject to all
federal, state and local employment and anti-discrimination laws and subject to their ability to perform.


 


4.5                                Security/Safety.  
Tenant will implement and carry out reasonable security and safety
measures for the Riverboat Gaming


 


11

















 


Project. This obligation shall in no way
lessen the obligation of the City to provide normal police and law enforcement
services to Tenant and the Riverboat Gaming Project as are available to other
businesses located in the City of Boonville. The City and Tenant agree to
cooperate to implement satisfactory coordination between the security provided
by Tenant and the City’s police responsibilities.


 


4.6                                 Thespian Hall.  
Tenant will coordinate activities at the Land Based Project with those
of Thespian Hall to promote year round activities at Thespian Hall. Tenant will
ensure that activities at. the Land Based Project will not compete with
activities at Thespian Hall. It is expressly acknowledged that the operations of the
Riverboat/Floating Facility shall not be deemed competition with the activities of Thespian Hall.


 


ARTICLE 5

REPAIRS
AND MAINTENANCE


 


5.1                                 Maintenance and
Repairs.   Tenant, at its sole cost, will repair,
maintain and care for the Riverboat Gaming Project and shall keep the same in
good order and condition, except for reasonable wear and tear, and shall make
all necessary repairs, interior and exterior, structural and nonstructural. All
repairs and maintenance will be of at least the same
quality as the original work,
ordinary wear and tear excepted.


 


5.2                                 Maintenance Reserve
Fund.   Prior to Opening Date, Tenant will establish a
repair and maintenance reserve fund (the “Maintenance Reserve Fund”) which will equal the annual estimated “Recurring
Repair and Maintenance Expenditures” (as defined below) for the portion of the
Land Based Project to be completed by the Opening Date. The Maintenance Reserve
Fund will be adjusted yearly to the prior year’s Recurring Repair and
Maintenance Expenditures for the portion of the Land Based Project completed on the first day of the prior year plus an amount equal to the reasonable annual
estimated Recurring Repair and Maintenance Expenditures for any other portion
of the Land Based Project to be used during the then commencing year. Tenant
will each year deposit additional funds into the Maintenance Reserve Fund as
needed to bring the balance of the Maintenance Reserve Fund to the level required for the year commencing. The Maintenance Reserve Fund will be held by the City, as landlord, in an
interest bearing account with all interest to be paid to Tenant, and may be used by the City if Tenant defaults in its repair
or maintenance obligations under the Project Documents or if this Lease and/or
the Master Agreement terminates. As used herein, “Recurring Repair and
Maintenance Expenditures” means expenditures, whether or not capitalized, for
repair and maintenance in the ordinary course of operation of the Land Based
Project: (i) of the improvements at the Land Based Project, and (ii) of
the landscaping at the Project Site. Recurring Repair and Maintenance
Expenditures shall not include, however: (a) costs of


 


12

















 


snow removal, lawn mowing, janitorial
services and other routine operating expenses, or (b) the amount of any extraordinary capital
expenditures by Tenant for major replacement of or additions to the landscaping
at the Project Site or the improvements at the Land Based Project.


 


5.3                                 No Services
Furnished.   The City shall not be required to furnish to
Tenant any utilities, facilities or services of any kind whatsoever during the Term other than normal fire,
police and other law enforcement services as are available to other businesses
in the City of Boonville; provided, further, that if the City also operates any
public utility, then such services from such public utility will be available
to Tenant and Tenant shall pay to the City for such services the same rates as
any other commercial customer of similar size. The City shall in no event be
required to make any alterations, rebuildings, replacements, changes,
additions, improvements or repairs during the Term.


 


ARTICLE 6

INSURANCE


 


6.1                                 Insurance Coverages.  
Tenant will continuously throughout the Term provide, at its sole cost,
the following insurance for the Riverboat
Gaming Project in amounts approved by the City: standard property peril
insurance in the amount of full replacement value, excluding foundation and footers; flood and earthquake insurance to the extent reasonably available
in the amount of replacement value for the Land Based Project; commercial
(comprehensive) liability insurance
policies, including (but not limited to) bodily injury, property damage,
contractor’s liability coverage, with broad form property damage endorsement or
its equivalent
with initial limits of no less
than $1,000,000 per occurrence and $2,000,000 in the aggregate; completion and
performance bond in standard form and in an amount not less than the total
amount of the contract for the work to be completed under such contract on the
Riverboat Gaming Project;
comprehensive automobile liability insurance with initial limits of no less than $1,000,000 per occurrence and
$1,000,000 in the aggregate; builder’s risk and (if Tenant is contracting for a
boat to be built) ship builder’s risk insurance; umbrella and excess umbrella insurance with initial limits of no less than
$10,000,000; and Workers’ Compensation, Longshoreman and Harbor Workers and
Maritime Liability (Jones Act Coverage) insurance policy or similar insurance
in form and amounts required by law, including employer’s liability. All
limits set forth in this Lease shall annually be adjusted for inflation.
Notwithstanding the foregoing, in lieu of Tenant obtaining such completion and performance bond, Tenant may, at its option, provide a guaranty
in form and content reasonably acceptable to the City on the part of a person or entity of financial strength reasonably acceptable to the City guaranteeing to the City, in the
event the contractor fails to perform under the construction contract and the
construction contract is terminated as a result thereof, the


 


13

















 


payment of that amount, if any, which is
incurred by the City in causing the completion of the work which is the subject
of the construction contract and which exceeds the contract price under the construction contract at the time of the
contract’s termination (exclusive of any net increase solely attributable to
change orders modifying the scope of the work and generated by the City after
the contract’s termination or other cost increases solely attributable to acts
or omissions of the City).


 


6.2                                 Named Insureds.   All
policies of insurance provided for in this Article 6 shall name Tenant as
the insured, and the City as an additional named insured, as their respective
interests may appear. Prior to the Commencement Date, and at least thirty (30)
days before the expiration of each policy then in force, Tenant shall deliver
to the City certificates evidencing the existence of all required insurance
policies.


 


6.3                                 Waiver of
Subrogation and Release.   Provided that the following can be obtained
and at a reasonable cost. (Tenant acknowledging that as of the date of this
Lease, the following can be obtained
and at a reasonable cost), each such policy shall contain an endorsement
containing a waiver of subrogation so that no act or omission of the City or
anyone operating under rights granted by it shall affect or limit the
obligation of the issuing insurance company to pay the amount of any loss
sustained. Tenant for itself and all parties claiming by, through or under it,
release and discharges the City, its officers and agents, from all losses, damages, claims or liabilities arising by reason of any peril
insurable (subject to exceptions and exclusions of such policy) pursuant to the
property peril insurance policy required under Section 6.1 hereof.


 


6.4                                 Cancellation/Modification Notice.  
Each such policy or certificate issued by the insurer shall contain an
agreement by the insurer that such policy shall not be canceled, modified,
nonrenewed or amended without at least thirty (30) days prior written notice to
the City.


 


ARTICLE 7
 INDEMNIFICATION


 


7.1                                 Indemnification of the City.  
Tenant will defend, indemnify
and hold harmless the City against and in respect of any obligation, liability
(excluding any exemplary damages) or expense (including court costs and
reasonable attorneys’ fees) incurred by the City as a result of any claim or
action brought against the City arising out of the acquisition, development or
operation of the Riverboat Gaming Project or in connection with the Project Site or the Riverboat Gaming Project except damages arising out of the negligence or willful
misconduct of the City, its agents and employees, or the City’s failure to
properly follow the statutory


 


14

















 


and other governing rules and procedures
required of the City to properly take an action.


 


7.2                                 Indemnification of Tenant.   The
City will defend, indemnify and hold
harmless Tenant against and in respect of any obligation, liability (excluding any exemplary damages) or expense
(including court costs and reasonable attorneys’ fees) incurred by Tenant as a result of any claim or action
brought against Tenant arising out of any (i) negligence or willful
misconduct of the City or its agents or employees, as landlord, or (ii) any misfeasance or malfeasance of the
City or its agents or employees
in its capacity as a governing body, in connection with the Project Site or the Riverboat Gaming Project.


 


7.3                                 Notification.   The
party seeking indemnification (the “Indemnitee”) shall notify the party from
whom indemnification is sought (the “Indemnitor”) in writing of any action,
suit or proceeding for which indemnification is sought and the Indemnitor shall
have the right to retain counsel of the Indemnitor’s reasonable choice and at
the sole cost of the Indemnitor, to defend the Indemnitee; provided, however,
the Indemnitor shall not enter into any settlement without the prior written
consent of the Indemnitee, which consent shall not be unreasonably withheld or
delayed.


 


ARTICLE 8

TAXING AND DESTRUCTION OF PROJECT SITE


 


8.1                                 Taking of Facilities.   If
all or any part of Tenant’s leasehold interest under this Lease is taken
through powers of eminent domain exercised by a governmental entity other than
the City, Tenant shall receive 90% and the City shall receive 10% of the
condemnation award. If any part of the Project Site is taken through the
exercise of eminent domain, Tenant shall have the right to reconfigure the
Project Site and modify the Riverboat Gaming Project as necessary as the result
of the eminent domain. The City shall not grant any eminent domain rights
with respect to the Project Site other than to Water Street so long as this Lease remains in effect.


 


8.2                                 Destruction of Riverboat Gaming Project.   If
nonmaterial damage or destruction occurs with respect to all or any part of the
Riverboat Gaming Project during the Term, Tenant shall rebuild that portion of
the Riverboat Gaming Project destroyed and all work performed shall be of at
least equal quality to the original work, ordinary wear and tear excepted. If
material damage or destruction occurs with respect to all or any part of the Riverboat Gaming Project during the Term,
Tenant may rebuild that portion of the Riverboat
Gaming Project destroyed and all work performed shall be of at least equal
quality to the original work, ordinary wear and tear excepted; provided,
however if Tenant elects not to rebuild then Tenant shall pay to the
City (i) all insurance
proceeds, other


 


15

















 


than any loss of income or loss of business
proceeds, payable with respect to the Land Based Project together with the
deductible amount under the insurance policy(ies) with respect to which Tenant
is to pay the proceeds to the City or (ii) if the amount of the damage
does not exceed the deductible, the amount of the damage, and this Lease shall
terminate.


 


ARTICLE 9

COMPLIANCE WITH LAWS


 


9.1                                General Compliance.  
During the Term, Tenant, at its sole cost, shall promptly comply with
all applicable present and future laws, ordinances, orders, rules, regulations
and requirements of all federal, state and municipal governments, departments, commissions, boards and officers, or other body or bodies
exercising similar functions, foreseen or unforeseen, ordinary as well as
extraordinary, which may be applicable to the Riverboat Gaming Project.


 


9.2                                Environmental Matters.


 


9.2.1                        Negative Covenants.   Tenant covenants and agrees not to: (i) bring to or place on
the Riverboat Gaming. Project any Hazardous Materials (defined below) other
than in such Quantities as are reasonably necessary in connection with the
conduct of Tenant’s business at the Riverboat Gaming Project; (ii) dump, flush or otherwise dispose of
any Hazardous Materials (defined below) into the Missouri River or any
drainage, sewage or waste disposal systems serving the Riverboat Gaming Project; (iii) generate,
store or use (other than in such
quantities as are reasonably necessary in connection with the conduct of Tenant’s
business at the Riverboat Gaming Project), release, spill or dispose of any Hazardous Materials (defined below) in or on the
Riverboat Gaming Project except in strict compliance with Environmental Laws (defined below); (iv) transfer
or transport any Hazardous Materials (defined below) from the Riverboat Gaming
Project to any other location except in strict compliance with Environmental Laws (defined below); (v) commit or allow to be committed in or on the Riverboat Gaming
Project any act which would require any
reporting or filing of any
notice with any governmental agency pursuant to any Environmental Law (defined below).


 


9.2.2                        Removal.   Tenant agrees that if during
the Term it or anyone shall generate, store (other than in such quantities as are reasonably necessary in connection with the
conduct of Tenant’s business at the Riverboat Gaming Project), release, spill,
dispose of, or transfer or transport (other than in such quantities as are, reasonably necessary in
connection with the conduct of Tenant’s business at the Riverboat. Gaming Project) to the Riverboat Gaming Project any


 


16
















 


“Hazardous Materials” (defined below), Tenant will
immediately remove the same, at its sole cost, in the manner provided by all applicable “Environmental
Laws” (defined below); regardless of when such Hazardous Materials are
discovered. Furthermore, Tenant shall (i) pay and (ii) indemnify,
defend and hold the City harmless against, all fines, penalties, claims,
demands and other assessments (including without limitation, remediation costs
and environmental damages) imposed or brought by any governmental agency or
others with respect to any Hazardous Materials and will immediately repair and
restore any portion of the Riverboat Gaming Project and/or the Missouri River
which it damages or disturbs in removing any such Hazardous Materials and
remediating the Riverboat Gaming Project to the condition which existed prior
to the damage \or disturbance.


 


9.2.3                Notification.
Tenant shall deliver promptly to  the
City any notices, orders or similar documents received from any
governmental agency or official concerning any violation of  any Environmental Laws or with respect to
any Hazardous Materials affecting or
emanating from the Riverboat Gaming  Project.


 


9.2.4                Definitions.


 


9.2.4.1     As
used in this Lease, the term “Hazardous Materials” shall be interpreted broadly to mean and
include any oils, petroleum, petroleum by-products,
asbestos, polychlorinated biphenyls, urea
formaldehyde, and any other toxic or hazardous wastes, materials, pollutants
and substances which are defined, classified., determined or identified as such
in any Environmental Laws, or in any judicial
or administrative interpretation of
Environmental Laws.


 


9.2.4.2     As
used in this Lease, “Environmental Laws” shall mean all federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, codes, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements or other governmental restrictions relating to the
environment or to emissions, discharges or releases of pollutants,
contaminants, petroleum or petroleum by-products, chemicals or industrial,
toxic or hazardous substances, materials or wastes into the environment
including, without limitation, ambient air, surface water, ground water or
land, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial, toxic
or hazardous substances or wastes or their cleanup or other remediation.


 


17

















 


9.2.5        Survival.   The obligations of Tenant
contained in this Section 9.2 shall survive the termination of this Lease.


 


9.3           Inspection Rights.   The City, its officers,
employees, contractors and agents shall have the right, but not the duty, to
inspect the Project Site and Tenant’s relevant environmental, land use and
other documents, and to perform such tests on the Project Site and the adjacent
river as are reasonably necessary to determine whether Tenant is complying with
the material terms of.this Article 9
at any reasonable time, so long as such inspection does not reasonably
interfere with Tenant’s ongoing business operations. The City shall be
responsible for any and all damage it, its officers, employees, contractors or
agents cause, with respect to the
Project Site and/or the Riverboat Gaming Project as the result of their
inspection or testing hereunder.


 


ARTICLE 10

IMPOSITIONS AND CONTEST


 


10.1         Impositions.          Tenant will pay or cause  to be paid, subject to Section 10.5 of this Lease, all current and
past due taxes, including but not limited to ad valorem taxes and special
assessments which constitute or will constitute if not paid, a lien on the Project Site, the Land Based
Project, the leasehold interest created by this Lease, or the “Improvements and
Personalty” (defined  below) (subject to
Sections 3.1.4 and 16.1) (collectively referred to as the “Taxes”) prior to the
Taxes being past due, which at any time on or after
the.Commencement Date may be assessed, levied,
confirmed, imposed upon, and/or become due and payable during the balance, if any, of the Term; provided,
however, that if, by law, any Taxes may, at the option of the taxpayer, be paid
in installments, Tenant may pay the same in equal installments over the period
of time allowed by law, provided, however, that Tenant shall pay all such
installments remaining unpaid at the termination of this Lease. It is the
intention of the parties that the Land.Based Project, the leasehold interest
created by this Lease and the.Improvements and Personalty will be subject to taxation under
Missouri law notwithstanding that the land constituting the Project Site is owned by the City.


 


10.2         Furnished Receipts.   Tenant, upon written request of
the City, shall furnish to the City, within thirty (30) days after the date of
such request, official receipts of payment issued by the appropriate taxing
authority, or other evidence of payment satisfactory to the City.


 


10.3         Utilities.  
During the Term, Tenant shall be solely responsible for paying for all
utilities required for operation of the Riverboat Gaming Project and shall make
all payments for or with respect to the same on a timely basis.


 


18

















 


10.4         Protection against Lien
Claims.   All work on the Land Based Project will be
performed by Tenant in such a manner that the Land Based Project will remain
free and clear at all times of all liens and encumbrances of any nature except
for Taxes not yet due and payable and liens created by persons working under
the direction of the City for which payment is not the responsibility of
Tenant. Subject to the foregoing, Tenant will
promptly pay and discharge all claims and
liens in connection with the Land Based Project. Notwithstanding the foregoing,
Tenant shall not be liable for any liens
or encumbrances for work performed on the
Project Site after Tenant relinquishes possession of the Project Site except as provided in this Lease.


 


10.5         Contest of Liens, Laws and Taxes.   Tenant shall have the right, after prior written
notice to the City, to contest by appropriate administrative
and/or legal proceedings, diligently
conducted, in good faith, without cost or expense to the City, unless and to
the extent that the City is the defendant to the action that.Tenant brings, the
validity or application of any Taxes, Utilities charges, liens or laws
(collectively “Impositions” and individually “Imposition”), subject to the
following:


 


10.5.1      if,
by the terms of any Imposition, compliance therewith pending the prosecution of
any such proceeding may legally be delayed without the occurrence of any lien,
charge or liability of any kind against the Project Site, the leasehold
interest created by this Lease, the Land Based Project or the.Improvements and
Personalty, or the operation of the Riverboat Gaming Project, and without
subjecting Tenant or the City to any liability, civil or criminal, for failure
so to comply therewith, Tenant may delay compliance until the final
determination of such proceeding: or


 


10.5.2      if
any lien, charge or civil or criminal liability would be incurred by reason of
any such delay, Tenant nevertheless may contest as aforesaid and delay as
aforesaid, provided that such delay would not subject the City to criminal
liability, and Tenant furnishes to the City satisfactory evidence of security
to the City against any loss or injury by reason
of such contest or delay, if required by the
City. If Tenant posts a bond in the amount of the Imposition under contest,
Tenant shall be deemed to have provided reasonable security.


 


10.6         City Joinder In Contest.   To
the extent legally necessary to enable Tenant to
lawfully exercise its rights under this Lease to contest an Imposition, the
City shall, at Tenant’s expense, join in any such contest in which the City is
not the defendant or adverse party.


 


19

















 


ARTICLE 11


TEE CITY’S PERFORMANCE OF TENANT’S COVENANTS


 


11.1         The City’s Right to
Perform.   If
Tenant fails to pay any Imposition in accordance with this Lease, or to take
out, pay for, maintain or deliver any of the insurance policies or certificates
as provided for in this Lease, or fails to make any other payment or perform
any other act on its part to be made or performed under this Lease, then the
City, after written notice to Tenant and Tenant’s failure to cure the same
within thirty (30) days after such notice (or immediately without notice or
opportunity to cure in the event of an emergency),
may (but shall be under no obligation to) (i) pay
any Imposition or other charge payable by Tenant pursuant to this Lease, or (ii) take
out, pay for and maintain any of the insurance policies provided for in this
Lease, or (iii) make any other payment or perform any other act on Tenant’s
part to be made or performed under this Lease, and may enter upon the Project Site for any such purpose, and take all such action, as may be necessary. No such
payment or performance
by the City will waive or release Tenant from its obligation which the City has
elected to pay or perform on behalf of Tenant nor waive the City’s right to take such action as may be permissible under
this Lease as a result of such default.


 


11.2         Repayment by Tenant. All sums so paid by the City and all costs
and expenses incurred by the City (including without limitation fees of
attorneys and other professionals) in connection with the performance of any
such act, shall bear interest until repaid to the City at the rate of 300 basis points above the prime rate of Boonslick Bank in Boonville,
Missouri and shall be paid by Tenant to the City within five (5) days
after demand.


 


ARTICLE 12


TERMINATION


 


12.1         Termination Events.


 


12.1.1      The  following  event  “Terminating  Events”)  shall  violate  conditions  to  performance  by  the  City  of  its  obligation  under  this  Lease  ,  and  shall  constitute  the  only  grounds  for  the  City  terminating  this  Lease:  (i)  subject  to  Section  17.5  of  this  Lease,  the  failure  of  Tenant  to  complete  construction  of  Phase  I/II  of  the  Land  Based  Project  no  later  than  April  3,  2001;  (ii)  subject  to  Section  13.2.1  of  this  Lease,  the  total  abandonment  of  the  Land  Based  Project;  (iii)  subject  to  Section  13.2.1  and  Section  17.5  of  this  Lease,  the  ceasing  of  gaming  activities  at  or  from  the  Project  Site  for  a  period  of  more  than  thirty  (30)  consecutive  days;  (iv)  the  failure  of  Tenant  to  keep  the  public  park  areas  (which  include  the  amphitheater  area)  open  to  the  public  (but  subject  to  such  rights  of  closure  as  are  provided  in  Section


 


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4.1 of this Lease) after notice and reasonable
opportunity to cure; (v) the failure of Tenant to pay the rent required
under Section 3.1 of this Lease; (vi) the failure of Tenant to comply
with Section 2.5 of the Master Agreement after notice and reasonable opportunity to cure; (vii) the
failure of Tenant to operate the Riverboat Gaming Project pursuant to Section 4.1
of this Lease after notice and reasonable opportunity to cure; (viii) the failure of Tenant to maintain insurance as required pursuant to Article 6 of this Lease; (ix) the
failure of Tenant to pay any City expenses which are the responsibility of
Tenant pursuant to this Lease or the Master Agreement or other monetary amounts
which the City advances for the benefit of Tenant (and which the City has the right to advance under the terms of
this Lease or the Master Agreement) after notice and reasonable opportunity to
cure; (x) the termination of the Master Agreement; or (xi) subject to Section 17.5 of this Lease, the failure of the Opening Date to occur by April 3, 2001.


 


12.1.2      Upon
termination of this Lease, all improvements to the Project Site, and all improvements, equipment, fixtures,
trade fixtures and personal property (except solely those artifacts, objects of
art and similar discreet items which are in good faith merely loaned or made
available to Tenant for display at
the Riverboat Gaming Project and so designated by
written notice to the City within thirty (30) days after such item is first placed upon the Riverboat Gaming
Project) constituting the Land Based Project
(the “Improvements and Personalty”) shall
automatically become the sole and exclusive property of the City. Until the
termination of this Lease, the Improvements and Personalty shall be the
property of the Tenant. In the event that the Riverboat Gaming Project is
constructed in accordance with the Preferred Site Configuration, then the term “Improvements
and Personalty” shall include the
Riverboat/Floating Facility (but not interior
gaming equipment and other personalty located therein, which shall be the
property of Tenant in all events and regardless of whether the Riverboat Gaming
Project is constructed in accordance with the Preferred Site Configuration or the Alternate Site
Configuration) and the Holding Pond. In the event that the Riverboat Gaming Project is constructed in accordance with
the Alternate Site Configuration, then the
Riverboat/Floating Facility will remain the
property of.Tenant and may be removed by Tenant
upon the termination
of this Lease. During the Term, Tenant
will satisfy any liens or encumbrances and prevent, except as otherwise provided in this Lease, any lien or encumbrance from being
filed against the Project Site or
the Improvements and Personalty other than for ad valorem property taxes and special assessments not yet due and payable, so that the Project Site and the Improvements and Personalty will at all


 


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times during the Term be free and clear of all liens
and encumbrances.


 


12.1.3      Tenant
agrees that the City shall be entitled to the
benefit of all provisions of law respecting the summary recovery of possession
of the Project Site. Tenant agrees that if it fails to surrender possession of the Project Site and
the Improvements and Personalty, Tenant shall be liable to the City for all
damages which the City shall suffer from Tenant’s failure to surrender
possession.


 


12.2         Surrender
and Delivery of the Project Site.
Tenant shall, upon the termination of this Lease,
deliver possession of the Project Site and the Improvements and Personalty to
the City without delay and in good order, condition and repair, except for
reasonable wear and tear, and free and clear of all occupancies, subleases,
concessions and licenses, and free and clear of all  liens
and encumbrances. In the event that the Riverboat Gaming Project is constructed
in accordance with the Alternate Site Configuration, then the
Riverboat/Floating Facility shall not constitute part of the Land Based Project
and shall remain the sole property of Tenant upon termination of this Lease.


 


12.3         Personal Property Not
Removed. Tenant shall remove all of Tenant’s personal property which does not constitute the Personalty from the Project Site upon termination
of this Lease. Any personal property of Tenant which remains in or on the
Project Site after thirty (30) days from the termination of this Lease may, at
the option of the City, be deemed to have been abandoned by Tenant and either
retained by the City as its property or disposed of in such manner by the City
as the City may see fit.


 


12.4         The City Not Responsible. After termination of this Lease, the City
shall not be responsible for any loss or damage occurring to any personal
property owned by Tenant or any sublessee, licensee or franchisee of Tenant or any of their
respective suppliers, customers or invitees.


 


12.5         Restoration. If the Riverboat Gaming Project is
constructed in accordance with the Alternate Site Configuration, then following
termination of this Lease, Tenant will, if requested in writing by the City
within thirty (30) days after this Lease terminates, remove the Holding Pond.
If the City does not request removal of the Holding Pond within thirty (30)
days after termination of this Lease, the Holding Pond shall become the
property of the City.


 


12.6         survival. Every obligation of Tenant under this Lease and
each Prime Lease which relates to
the Riverboat Gaming Project or the occupancy by Tenant of the Project Site,
including the Railroad Portion and the DNR Portion, shall survive the termination
of this Lease and the applicable Prime Lease
and shall not


 


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terminate until such obligation is fully satisfied by Tenant. Notwithstanding the foregoing, Tenant shall
incur no obligation or liability under either this Lease or any Prime Lease
which arises after the termination of this Lease or such Prime Lease, as the case may be, other than obligations or liabilities which result from any action by Tenant, its agents or employees or from the
occupancy of the Project Site by Tenant or relate to the period of time that
Tenant occupied the Project Site.


 


ARTICLE 13

DEFAULT AND REMEDIES


 


13.1         Default. The following constitute a “Default” under
this Lease:


 


13.1.1      Failure
to perform or observe any covenant, obligation or agreement of this Lease which
failure continues uncured for thirty (30) days after written notice from the
City; provided that if such Default is of such a nature that it cannot
reasonably be cured within such thirty (30) day period, then so long as Tenant
commenced cure efforts within the thirty (30) day period and diligently pursues
completion of such cure, the thirty (30) day period will be extended for such
period of time as is reasonably necessary to complete such cure.


 


13.1.2      The
occurrence of any other event described as constituting a “Default” in the
Project Documents, which is not cured within any applicable notice and cure
period.


 


13.2         Remedies.


 


13.2.1      If
for any reason Tenant abandons the Phase I/II portions of the Land Based
Project at any time on or after the date the Acquisition Escrow Account is
funded by Tenant in accordance with this Lease Agreement and the Master
Agreement, then Tenant shall have the right to attempt to sell its interest in
the Riverboat Gaming Project (including but not limited to an assignment of its
interest under this Lease) in accordance with the provisions of Section 1.6.2
of the Master Agreement, and in the event of such abandonment, the rights and
remedies of Tenant and the City in connection therewith shall be as provided
for, and as limited in, Sections 1.6.2, 1.6.3 and 1.6.4 of the Master
Agreement.


 


13.2.2      The
cessation of gaming activities at or from the Project Site for period of 30
consecutive days or more shall,  unless
caused by the matters provided for in Section 17.5 of this Lease, be
deemed to constitute an abandonment of the Phase I/II portions of the Land
Based Project, and in such event the parties shall have the rights and remedies
provided for in Section 13.2.1 above;
provided,


 


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however,  that  unless  such  cessation  of  gaming  activities  was  a  voluntary  act  by  Tenant,  Tenant  shall  have  the  right  to  promptly  commence  such  action  as  may  be  necessary  or  appropriate  to  permit  the  resumption  of  gaming  activities  at  or  from  the  Project  Site,  and  so  long  as  Tenant  is  diligently  pursuing  such  action,  the  cessation  of  gaming  activities  (i)  shall  not  be  considered  an  abandonment  of  the  Phase  I/II  portions  of  the  Land  Based  Project,  and  (ii)  shall  not  permit  the  City  to  terminate  this  Lease  in  accordance  with  clause  (iii)  of  Section  12.1.


 


13.2.3      If  a  Default  arises  from  Tenant’s  failure  to  complete  Phase  III  (other  than  payment  of  the  Additional  Payment)  as  and  when  required  under  the  Project  Documents,  within  thirty  (30)  days  after  receiving  written  notice  of  such  Default  from  the  City,  Tenant  will  (i)  cure  such  default,  (ii)  notify  the  City  in  writing  that  such  failure  is  for  reasons  beyond.  its  control,  or  due  to  events  or  circumstances  within  the  scope  of  Section  17.5  of  this  Lease,  that  are  then  reasonably  likely  to  continue  indefinitely,  or  (iii)  notify  the  City  that  such  failure  is  due  to  events  or  circumstances  within  the  scope  of  Section  17.5  that  are  not  then  likely  to  continue  indefinitely.  In  the  case  of  clause  (ii)  above,  the  City  will  be  entitled  to  an  amount  equal  to  the  actual  reasonable  cost  of  completion  of  the  uncompleted  Project  Increment(s),  and  Tenant  will  accompany  its  written  notice  referred  to  in  clause  (ii)  above  with  payment  to  the  City  of  its  estimated  cost  of  completion  of  such  Project  Increment(s)  (with  Tenant  remaining  obligated  to  pay  the  actual  reasonable  cost  thereof,  if  greater,  and  the  City  remaining  obligated  to  refund  any  excess  of  such  payment  over  the  actual  reasonable  cost  thereof,  if  lower).  In  the  case  of  clause  (iii)  above,  so  long  as  Tenant  commenced  cure  efforts  within  thirty  (30)  days  after  receiving  written  notice  of  such  Default  from  the  City  and  diligently  pursues  completion  of  such  cure,  the  thirty  (30)  day  period  will  be  extended  as  reasonably  necessary  to  complete  such  cure.  If  a  Default  arises  from  Tenant’s  failure  to  fully  pay  the  Additional  Payment  as  and  when  required  under  the  Project  Documents,  Tenant  shall  have  a  period  of  thirty  (30)  days  after  receipt  of  written  notice  of  such  Default  from  the  City  to  cure  such  Default.


 


If the City disagrees with the position taken
in Tenant’s notice referred to in the foregoing paragraph, then it will within thirty (30) days of receiving such notice so notify Tenant in writing, and, unless the parties otherwise agree, the dispute will be submitted to
arbitration in St. Louis, Missouri under the Commercial Arbitration Rules of
the American Arbitration Association. The decision of the arbitrator(s) shall
be binding and conclusive on the City and Tenant, and a judgment on the award may be entered by any
court having jurisdiction. In addition, if the
position taken


 


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by Tenant in its written notice to the City was as  specified in clause (ii) above, then the City’s written notice made
pursuant to this paragraph will be accompanied by a return of the payment
tendered by Tenant.


 


ARTICLE 14


BANKRUPTCY


 


14.1         Events of Bankruptcy.   The following shall be “Events
of Bankruptcy” under this Lease:


 


14.1.1      Tenant’s
having been adjudicated insolvent, as that term is defined in 11 U.S.C. § 101, et. seq. (the
“Bankruptcy Code”), or under the insolvency laws of any state, district,
commonwealth or territory of the United
States (the “Insolvency Laws”);


 


14.1.2      the
appointment of a receiver or custodian
for all or a substantial portion of Tenant’s
property or assets, or the institution of a foreclosure action upon all or a
substantial portion of Tenant’s real or personal property;


 


14.1.3      the
filing of a voluntary petition by Tenant under the provisions of the Bankruptcy
Code or Insolvency Laws;


 


14.1.4      the
filing of an involuntary petition against Tenant as the subject debtor under
the Bankruptcy Code or Insolvency Laws, which is either not dismissed within sixty (60) days of filing, or results in the
issuance of an order for relief against the debtor,
whichever is later; or


 


14.1.5      Tenant’s
making or consenting
to an assignment for the benefit of creditors or a common law composition of creditors.


 


14.2         The City’s Remedies.


 


14.2.1      Termination of Lease.          Upon the occurrence of an
Event of Bankruptcy, the City shall have the right to terminate this Lease by giving written notice to Tenant, and Tenant shall be immediately obligated to quit the Project Site. Any other
notice to quit, or notice of the City’s intention to reenter, is expressly
waived. If the City elects to terminate this
Lease, everything contained in this Lease on the part of the City to be done and
performed shall cease without prejudice,
subject, however, to the right of the City to recover from Tenant all amounts
owed up to the time of termination or recovery of possession by the City,
whichever is later,
and any other monetary damages or losses sustained by the City; provided,
however, and notwithstanding the


 


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foregoing or the further remedies set forth in this Section 14.2,
the City shall not have the  right
to terminate this Lease while a case in which Tenant is the subject debtor
under the Bankruptcy Code is pending, unless Tenant or its trustee in bankruptcy (the “Trustee”)
is unable to comply with the provisions of
Sections 14.2.5 of this Lease.


 


14.2.2      Suit for Possession.             Upon termination of this Lease pursuant to Section 14.2.1 of this Lease, the City may proceed to recover possession under and by  virtue of the provisions of the laws of  Missouri or by such other proceedings, including reentry and possession, as may be applicable.


 


14.2.3      Reletting of Project Site.     Upon termination of this Lease
under Section 14.2.1 of this Lease, the
City shall have the option to relet the Project Site for such rent and
upon such terms, in the City’s sole discretion. The City shall not be liable in
any way whatsoever for failure to relet the Project Site or, if the Project Site is relet, for failure to collect the rent
under such reletting, and in no event shall Tenant be entitled to receive the excess, if any, of such
net rent collected over the sums payable by Tenant to the City under this
Lease.


 


14.2.4      Monetary Damages.            Any
damage or loss sustained by the City as a result of an Event of Bankruptcy may
be recovered by the City in any manner
available at law
or in equity. However, if Tenant becomes the subject debtor in a case pending under the
Bankruptcy Code, the provisions of  this
Section 14.2.4 may be limited by
the limitation of damage provisions of
the Bankruptcy Code.


 


14.2.5      Assumption or Assignment by Trustee. If Tenant becomes the subject debtor in  a case pending under the Bankruptcy Code, the City’s right to terminate
this Lease pursuant to this Article 14 shall be subject to the rights of the Trustee to assume or assign this Lease.
The Trustee shall not have the right to assume or assign this Lease unless the
Trustee (i) promptly cures all Defaults under this Lease and all other
Project Documents (ii) promptly compensates the City for monetary damages
which the City has established to the satisfaction of the Bankruptcy Court that
it has incurred as a result of such Defaults, (iii) provides “adequate
assurance of future performance”, and (iv) complies with Article 15
of this Lease.


 


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ARTICLE 15

ASSIGNMENT/SUBLEASE/ENCUMBRANCE


 


15.1         Assignment, Subletting and Other Transfers.


 


15.1.1      Subject to Sections 15.1.3, 15.1.4 and
15.1.5, Tenant may not assign this Lease, or sublet the Land Based Project, in whole or in part, without the City’s prior written consent (which may not be unreasonably withheld). No such
assignment or sublease, even if so consented to, will be effective until the
City receives and approves an executed counterpart of such assignment or
sublease, in recordable form, under which the assignee assumes all obligations
of Tenant under this Lease. This Article 15 shall not be construed to
prevent Tenant from assigning its rights pursuant to Section 16 of the
Master Agreement provided that Tenant complies with this Article 15. Notwithstanding
the foregoing, Tenant may sublease individual premises within buildings that
constitute part of the Land Based Project (for example, without limitation, a
sublease of a restaurant facility) without the prior consent of the City; provided,
however, that each such sublease will terminate upon the expiration or sooner termination
of this Lease and will provide that such sublease is subject to all of the terms and conditions of this Lease.


 


15.1.2      Subject to Sections 15.1.3, 15.1.4 and
15.1.5, any transfer, whether voluntary, involuntary or by operation of law, or any issuance by Tenant, of shares of stock or other interests
of a proprietary nature in Tenant or its successor which, whether through a
transaction or series of transactions, results in the Trusts or their Permitted
Transferee(s) (defined
below) ceasing to own at least
51% of all of the issued and outstanding shares of
stock and other interests of a
proprietary nature in Tenant may not occur without the prior written consent of
the City (which may not unreasonably be withheld).


 


15.1.3      Notwithstanding Sections 15.1.1 and 15.1.2,
it will
be unreasonable per se for the
City to withhold its consent to a transfer (i) on the ground (whether by
itself or together with other factors) that the proposed transferee has
insufficient net worth if the proposed transferee has a net worth, immediately
prior to the transfer, of at least Ten Million Dollars ($10,000,000) (exclusive
of goodwill and other intangible assets if the proposed transferee is not an
individual), it being understood that the City may reasonably consent to a transfer to a proposed transferee with a
net worth of less than such amount, or (ii) if the proposed transferee is
a Necessarily Acceptable Transferee   (defined below), it being understood that the
City may reasonably


 


27

















 


consent to a transfer to a proposed
transferee other than a Necessarily Acceptable Transferee.


 


15.1.3.1   For purposes of this Section 15.1.3, a “Necessarily
Acceptable Transferee” means that the
proposed transferee satisfies all of the following criteria, as evidenced to
the City by such documentation as the City may reasonably request:


 


(a)  the
proposed transferee has a net worth, immediately prior to the transfer, of at
least Ten Million Dollars ($10,000,000) (exclusive of goodwill and other
intangible assets if the proposed transferee is not an individual);


 


(b)  the
proposed transferee shall either (i) have proven expertise in the gaming
industry of at least five (5) continuous years,
or (ii) be a company whose equity interests are directly or indirectly
owned 50% or more by a company or individuals with proven
expertise in the gaming industry of at least five (5) continuous years;


 


(c)  Tenant
shall have in its employ following the transfer a general manager for the
Riverboat Gaming Project whose executive officers and other key personnel (as
reasonably designated by  the City) possess proven expertise
in the gaming industry as evidenced by prior business activity of at least five
(5) continuous years; and


 


(d)           the proposed transferee has been investigated
by the Missouri Gaming Commission and advised in writing that issuance of all
permits and licenses necessary in order to lawfully conduct gaming activities at
the Project Site in accordance with the terms of this Master Agreement and
Master Lease will be forthcoming reasonably contemporaneously with the
effective date of the, transfer.


 


15.1.4      Notwithstanding Sections 15.1.1 and 15.1.2, the Trusts may transfer all or a portion of their proprietary
interest in Tenant without the City’s consent to, or to a  trust for the
benefit of, Marvin Davis or a spouse, child or grandchild of Marvin Davis
(individually, a “Permitted Transferee” and, collectively, “Permitted Transferees”).


 


15.1.5      Notwithstanding Sections 15.1.1 and 15.1.2,
Tenant may transfer its rights under the Project Documents without the City’s
consent so long as after giving effect to such transfer the transferee is a
corporation, partnership or


 


28

















 


limited liability company the proprietary
interests of which are at least 51% owned, directly or indirectly, by the
Trusts or their Permitted Transferee(s).


 


15.2         Limited  Right  to  Encumber  Leasehold  Interest.  Tenant  may,  at  any  time  and  from  time  to  time  during  the  term  of  this  Lease  (subject,  however,  to  the  limitations  contained  in  Section  15.2.3),  encumber,  by  deed  of  trust  or  mortgage  or  other  security  instrument  in  favor  of  a  Lender  who  has  been  approved  by  the  Missouri  Gaming  Commission  (to  the  extent  such  approval  is  required  by  applicable  law)  as  an  acceptable  secured  lender  to  Tenant  (“Lender”),  all  of  Tenant’s  interest  under  this  Lease  and  the  leasehold  estate  hereby  created  in  Tenant  (the  “Leasehold  Estate”)  together  with  any  or  all  of  the  other  portions  of  the  Riverboat  Gaming  Project  owned  by  Tenant  (such  deed  of  trust,  mortgage  or  other  security  instrument  is  referred  to  in  this  Lease  as  a  “Leasehold  Encumbrance”),  strictly  in  accordance  with  the  terms  hereinafter  set  forth:


 


15.2.1      Any Leasehold Encumbrance shall be subject to
all
covenants, conditions and
restrictions set forth in this Lease and to all rights and interests of the City.


 


15.2.2      Tenant  shall  give  the  City  no  less  than  twenty  (20)  days  prior  written  notice  of  any  Leasehold  Encumbrance,  accompanied  by  a  copy  of  any  and  all  deeds  of  trust,  mortgages  and/or  other  security  instruments  evidencing,  creating  and/or  governing  the  Leasehold  Encumbrance  (collectively  the  “Security  Instrument”).


 


15.2.3      Any indebtedness secured by a Leasehold
Encumbrance must, at the time of creation of such Leasehold Encumbrance, comply with the following:


 


(a)           as long as Tenant is at least 51% owned,
directly or indirectly, by beneficiaries of the Trusts,
no indebtedness secured by a
Leasehold Encumbrance shall have a term which extends (regardless of when the
indebtedness is incurred) past the tenth (10th) anniversary of the Opening Date; and


 


(b)           except to the extent such indebtedness is
personally guaranteed by any of (i) Marvin Davis, (ii) any or all of
the Trusts, or (iii) any individual or entity with a net worth in excess
of $10,000,000 (exclusive of goodwill and other intangible assets in the case
of an entity), the amount of such indebtedness (i.e., the amount of the
unguaranteed portion of such indebtedness) shall not exceed a sum equal to 60%
of the fair market value of the Riverboat Gaming Project.


 


29

















 


The parties acknowledge that in the event that Tenant desires to expand the
geographic area of the Project Site beyond the area contemplated by the Master
Agreement or desires to construct additional improvements as a part of the Land
Based Project upon the Project Site, and in the event that Tenant and the City
mutually agree upon the applicable terms and
conditions of such geographic expansion or additional improvements, then the parties will negotiate the prospect of Tenant providing to a Lender a
security interest in its interest in this
Lease to secure financing for such geographic expansion and/or additional
improvements.


 


15.2.4      No Leasehold Encumbrance shall in any way constitute or be construed as a lien or encumbrance on the City’s
fee interest in the Project Site or on the City’s reversionary interest in the
Improvements or Personalty. The Leasehold
Encumbrance may encompass the Improvements
and Personalty but only so long as the Leasehold Encumbrance is in effect with respect to this Lease and
only so long as the Leasehold Encumbrance recognizes the City’s reversionary
interest in the Improvements and Personalty and can not extinguish or affect
the City’s rights to receive the Improvements and Personalty upon the termination of this Lease
free and clear of any lien or encumbrance. Therefore, any lien or encumbrance
on the Improvements or Personalty shall only
be  permitted if such lien or encumbrance is only a lien on
the Improvements and/or Personalty for the duration that the Lender has a lien
or encumbrance against Leasehold Estate and does not extinguish the City’s
reversionary interest in the Improvements and/or Personalty. Notwithstanding
the foregoing, however, the Lender may also hold liens on the
Riverboat/Floating Facility and the
other property of Tenant to the extent such property does not constitute the Leasehold Estate or the
Improvements or Personalty under this Lease, and Lender shall have the right to
realize on such collateral without restriction.


 


15.2.5      The City shall mail to any Lender who has given the City written request for the
same accompanied by notice of its address (a “Noticed Lender”), a duplicate
copy of any and all notices alleging or asserting the existence of a Default by
Tenant under this Lease or the occurrence or existence of any fact, event or
circumstance which with the giving of notice or the passage of time, or both,
would constitute a Default by Tenant under this Lease (a “Required Lender Notice”). In addition, the City shall use
reasonable efforts to mail to any Noticed Lender a duplicate copy of any other
notices the City may from time to time give to or serve on Tenant pursuant to or relating to this
Lease, but the City


 


30

















 


shall have no liability for failure to do so.
Any notices or other communications to a Noticed Lender by the City pursuant to this Lease shall be deemed to have been served on or given to Lender three (3) business days after
deposit in the United States first class certified mail, return receipt requested, postage prepaid, addressed to Lender at the
last mailing address for Lender
furnished in writing by the Lender to the City.


 


15.2.6      For as long as there is any Leasehold Encumbrance in effect, the City hereby
expressly agrees that it will notify a
Noticed Lender prior to materially modifying any material term of this Lease.
Notwithstanding the foregoing, however, upon foreclosure or other realization
under a Leasehold Encumbrance (including but not limited to by assignment or
other transfer in lieu of foreclosure), no Lender or other person which succeeds
to the interest of Tenant shall be  bound by any amendment to this
Lease which has not been consented to by Lender in writing.


 


15.2.7      A Lender with a valid Leasehold Encumbrance
shall have the right at any time to:


 


15.2.7.1      do any act or thing
required of Tenant under this Lease, and any such act or thing done and
performed by Lender shall be as effective to prevent a forfeiture of Tenant’s
rights under this Lease as if done by Tenant; and/or


 


15.2.7.2      realize on the
security afforded by the Security Instrument by foreclosure proceedings,
accepting an assignment in lieu of foreclosure, or other remedy afforded in law
or in equity or by the Security Instrument, and to:


 


(a)  transfer,
convey or assign the title of Tenant to the Leasehold Estate to any purchaser
at any foreclosure sale, whether the foreclosure sale is conducted pursuant to
court order or pursuant to a power of sale contained in the Security
Instrument, or to an assignee pursuant to an assignment in lieu of foreclosure,
provided that in each and any such instance the Lender shall first obtain the
prior written consent of the City, which consent shall not be unreasonably
withheld or denied so long as the Lender provides to the City satisfactory
evidence that the purchaser, assignee or other acquirer is an “Acceptable
Transferee” (defined below), but may otherwise be withheld, denied or
conditioned in the sole and absolute unrestricted discretion of the City; and


 


31

















 


(b)  itself
acquire and succeed to the interest of Tenant under this Lease by virtue of any
foreclosure sale, whether the foreclosure sale is conducted
pursuant to a court order or pursuant to a power of sale contained in the
Security Instrument, or by virtue of an assignment in lieu of foreclosure, provided that the
Lender has complied with the provisions of Sections 15.2.11.3 and 15.2.11.5
below, and further provided that thereafter the Lender shall be required  to
comply with the provisions of Section 15.2.7.2(a) in connection with
any subsequent sale, transfer, assignment or other conveyance or disposition of
the Leasehold Estate.


 


15.2.8      No Lender under any Leasehold Encumbrance
shall be liable to the City as an assignee of this Lease unless and until
Lender acquires
all
rights of Tenant under this Lease through foreclosure, an assignment in lieu of
foreclosure, or as a result of some other action or remedy provided by law or
by the Security Instrument; provided, however, that in all events, any person or entity acquiring the
Leasehold Estate (including Lender if Lender acquires the Leasehold Estate)
shall be liable to perform Lessee’s obligations under this Lease during any
period, but only during any period, in which that entity or person has
ownership of the Leasehold Estate or possession of the Project Site. No sale,
assignment,. transfer or other conveyance of the Leasehold Estate by
any party who is an assignee, successor in interest or transferee of Lender shall
cause any such party to be released from liability under this Lease; provided
that Lender shall not be deemed an owner of the Leasehold Estate or to be in
possession of the Project Site until Lender acquires all rights of Tenant under
the Lease through foreclosure, an assignment in lieu of foreclosure,
or as a result of some other action or remedy provided by law or by the
Security Instrument.


 


15.2.9      For as long as there is in effect any
Leasehold Encumbrance held by a Noticed Lender, the City may not terminate this
Lease because of any Terminating Event other than those Terminating Events
listed in Sections 12.1.1 (i),(x) or (xi) of this Lease (the Terminating
Events listed in clauses (ii) through and including (ix) being
referred to as a “Lender-Curable  Terminating Event”), unless the City has
given to the Noticed Lender a copy of the written notice provided
to Tenant declaring the existence of the Lender-Curable Terminating Event and
afforded Lender the opportunity after service of the notice to:


 


15.2.9.1      Cure the Lender-Curable
Terminating Event within 20 days after expiration of the time period granted to Tenant
under this Lease for curing such


 


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Lender-Curable Terminating Event, when the
Lender-Curable Terminating Event can be cured by the payment of money to the
City or some other person;


 


15.2.9.2      Cure the
Lender-Curable Terminating Event within 45 days after expiration of the time period granted to Tenant under
this Lease for curing such Lender-Curable Terminating Event, when the Lender-Curable Terminating Event
must be cured by something other than the payment of money and can by its
nature reasonably be cured within the period of time after service of the
notice on Lender and before the expiration of such 30 day period; provided,
however, that if the applicable Lender-Curable Terminating Event is of such a
nature that, although it can be cured, it cannot be cured within such period,
then so long as Lender commences the acts necessary to cure the Lender-Curable
Terminating Event within such period and thereafter diligently
continues to pursue such cure,
then the cure period available to Lender shall be extended for
such reasonable period of time as is reasonably necessary in order to permit Lender to complete such
cure.


 


15.2.10    Tenant and Lender, jointly and severally
agree to reimburse City on demand for the City’s actual costs (including
reasonable attorney’s fees), incurred in conjunction with the review,
processing and documentation of any assignment, transfer, or other change of ownership of the Leasehold Estate effectuated by or on behalf
of Lender or otherwise pursuant to the exercise of rights under the Security
Instrument.


 


15.2.11    For purposes of this Section 15.2, the
term “Acceptable Transferee” shall mean that the proposed transferee of the
Leasehold Estate satisfies each and every one of the following criteria, as
evidenced to the City by such documentation as the City shall reasonably
request:


 


15.2.11.1    the
proposed transferee has a net worth, immediately prior to the transfer, of at
least Ten Million Dollars, exclusive of goodwill and other intangible assets;


 


15.2.11.2    the
proposed transferee shall (a) be a company either (i) with proven
expertise in the gaming industry of at least 5 continuous years, or (ii) whose
equity interests are directly or indirectly owned 50% or more by a company
which has proven expertise in the gaming industry of at least 5 continuous
years, and (b) employ a general manager for the Riverboat Gaming Project
whose executive officers and other key personnel (as reasonably designated by
the City) possess proven


 


33

















 


expertise in the gaming industry as evidenced
by prior business activity of at least five continuous years;


 


15.2.11.3    the proposed
transferee has been investigated
by the Missouri Gaming Commission and advised in writing that issuance of all
permits and licenses necessary in order to lawfully conduct gaming activities
at the Project Site in accordance with the terms of this Lease will be
forthcoming reasonably contemporaneous with the effective date of the transfer
of this Lease;


 


15.2.11.4    the
proposed transferee agrees to fund, contemporaneous with the effectiveness of
the transfer,
the entire then unfunded portion
of the Acquisition Escrow Account and the Construction Escrow Account,
determined as if there was a present obligation to cause (a) the
Acquisition Escrow Account to equal the full unpaid acquisition cost of all
phases of the Riverboat Gaming Project and/or (b) the Construction Escrow
Account to equal the full unpaid costs of the construction (including required
renovations) of all phases of the Riverboat Gaming Project; and


 


15.2.11.5    the
proposed transferee assumes all of the duties and obligations of Tenant (or its
affiliates) under this Lease, the Master Agreement and all other Project
Documents and agrees to be bound to the City to observe, perform and/or comply
with all of  the terms, provisions, conditions, obligations, duties,
covenants and agreements at any time to be observed, performed and/or complied
with by Tenant (or its affiliates) under each such document as if the
transferee were originally a party to the same in the place of Tenant (or its
affiliates), all pursuant to documents and/or instruments in form and content
as are requested by and acceptable to the City.


 


15.2.12    Any rights of a Lender pursuant to this Section 15.2,
including but not limited to the right to
realize on the Leasehold Estate created hereunder, may be exercised by an
affiliate or by a nominee on behalf of such Lender.


 


15.2.13    If this Lease is terminated or is proposed to be terminated for any
reason, by the City or Tenant (including, but not limited to, any rejection of
this Lease in a bankruptcy proceeding), then as soon as the City learns of such
termination or proposed termination, the City will immediately notify Lender of
such termination or proposed termination (a “Termination Notice”), which notice
will set forth any sums or other performance due to the City under this Lease, and upon the written request of Lender, the City will


 


34

















 


enter into a new lease for the Project Site
with Lender or its designee (a “Lender Tenant”) for the remainder of the term
of this Lease, upon the terms, provision, covenants and agreements set forth in
this Lease, with such amendments thereto as may have been theretofore approved
in writing by Lender,
provided:


 


15.2.13.1    Such Lender
Tenant will request the City for such a new
lease within thirty (30) days after the date of its receipt of the Termination
Notice.


 


15.2.13.2    Such Lender
Tenant will pay to the City, at the time of the execution and delivery of said
new lease, on or about the date such Lender Tenant acquires the right to ‘lease
the Project Site (which may be subject to delay by operation of any stay in any proceedings involving the reorganization
or insolvency of Tenant), any and all sums then due under this Lease but for
such termination.


 


15.2.13.3    Such Lender
Tenant will, upon execution, and delivery of said new lease, perform and observe all the other covenants and conditions on
Tenant’s part to be performed and observed to the extent that Tenant will have
failed to perform and observe the same, except that (i) with respect to
any breach or default which cannot be cured by such Lender Tenant until it
obtains possession of the Project Site, said Lender Tenant will have a
reasonable time after said Lender Tenant obtains possession to cure such breach
or default, and (ii) in no event will any Lender or Lender Tenant be required to.
cure a breach or default
relating to the bankruptcy or insolvency of Tenant or any other breach or default of Tenant which is not susceptible of
being cured by a Lender Tenant.


 


ARTICLE 16


COVENANTS


 


16.1         Covenants By the
City. The City represents, warrants and covenants to Tenant and its permitted assigns
(i) a covenant of quiet enjoyment for any action taken by or through the
City and with the further limitation that the City shall in no way be liable for title defects associated with
title prior to the City receiving title to the Project Site; (ii) that
this Lease is valid, binding upon and enforceable against the City in
accordance with its terms; (iii) that upon
execution of this Lease, the City will provide Tenant with an opinion of its
legal counsel that this Lease is valid, binding upon and enforceable against
the City in accordance with its terms; and (iv) during the term of this
Lease, the City shall not assess or charge Tenant for utilities, tap-in rights,
hook-ups, refuge pick-up or any other charge
for City services or


 


35

















 


City owned services which are not consistent with
the charges charged to any other business in the City nor shall it impose any
docking fees of any nature or description on Tenant.


 


16.2         Covenants By Tenant.   Tenant
represents, warrants and covenants to the City as follows:


 


16.2.1      Enforceability.   This Lease is
valid, binding upon and enforceable against Tenant in accordance with its
terms.


 


16.2.2      Power and Authority. Tenant is a
corporation duly organized, validly existing and in good standing under Nevada
law, and is authorized to do business as a foreign corporation in, and is in
good standing under the laws of, Missouri. Tenant has the full authority and power to enter into this Lease, to
execute and deliver this Lease and to perform and observe all the terms,
conditions and provisions of this Lease to be so observed and performed by
Tenant. The execution and delivery of this Lease by Tenant has been duly authorized by
all necessary action on its part. Tenant shall provide to the City a certified copy of its
resolution authorizing the
execution and delivery of this Lease.


 


16.2.3      No Conflicts. Except as
otherwise provided in this Lease, nothing in this Lease agreed to by Tenant or its officers,
members and directors, will conflict with or result in a breach of the terms
and provisions of any contract or agreement to which Tenant, its officers, members
or directors, are a party or by which Tenant, its officers, members or directors otherwise
are bound, or to the best knowledge of Tenant will violate any existing law, rule,
regulation, order of any court or governmental authority having jurisdiction
over or otherwise affecting Tenant, its officers, members or directors.


 


16.2.4      Financial Condition. Tenant is not a
party to any assignment for the benefits of its creditors or any bankruptcy
proceedings, and the transactions contemplated in this Lease shall not cause
Tenant to become insolvent or otherwise unable to pay its debts as the same
become due.


 


16.2.5      No Contract Defaults.         Except as otherwise
provided in this Lease, Tenant is not in default under the terms or conditions of
any contract or agreement to which it is a party, which materially and
adversely affects its ability to perform its obligations under this Lease.


 


16.2.6      No Litigation. Except as otherwise
provided in this Lease, to the
best knowledge of Tenant, there are no claims, suits or other proceedings
threatened or pending against Tenant which materially and adversely affect its
ability to perform its obligations under this Lease.


 


36
















 


16.2.7    Opinion of Counsel. Tenant shall
provide to the City an opinion of counsel stating that Tenant has the requisite
power and authority to enter into this Lease, the party executing this Lease on
behalf of Tenant has been duly authorized to do so and that this Lease is
valid, binding upon and enforceable against Tenant in accordance with its
terms. Further, the opinion of counsel shall state that based upon the facts
known to counsel but without further investigation or inquiry that this Lease
does not violate any existing law, rule, regulation, order of any court or
governmental authority having jurisdiction over or otherwise affecting Tenant,
its officers or directors


 


ARTICLE 17


GENERAL PROVISIONS


 


17.1       Notices.   Any notice or other communication required,
permitted, or contemplated by this Lease (a “Notice”) must be in writing and
may be given by a nationally recognized overnight courier service (e.g. Federal
Express, Airborne, etc.), United States Mail, registered or certified mail, return receipt requested, personal delivery with
executed receipt or facsimile with verification and followed by United States
Mail, registered or certified mail, return receipt requested. Such Notice shall
be deemed to have been duly given, delivered or served; (i) if and when personally delivered or sent by
verifiable facsimile on the date so delivered or sent, or (ii) three (3) days
after being mailed by registered or certified mail, postage prepaid, or (iii) one (1) day if sent by a nationally recognized overnight
courier delivery service for next day delivery, costs prepaid, addresses to:


 


	
  The City:

  	
   

  	
  City of Boonville

  
	
   

  	
   

  	
  Attn:   City Administrator

  
	
   

  	
   

  	
  525 East
  Spring Street

  
	
   

  	
   

  	
  Boonville, Missouri 65233-1658

  
	
   

  	
   

  	
  Telephone:   (816)
  882-2332

  
	
   

  	
   

  	
  Telecopier:   (816) 882-6608

  
	
   

  	
   

  	
   

  
	
  With copies to:

  	
   

  	
  Paul M. Wooldridge, Esq.

  
	
   

  	
   

  	
  312 Main Street

  
	
   

  	
   

  	
  Boonville, Missouri 65233

  
	
   

  	
   

  	
  Telephone:   (816) 882-3447

  
	
   

  	
   

  	
  Telecopier:   (816) 882-2542

  
	
   

  	
   

  	
   

  
	
  And with copies to:

  	
   

  	
  King Hershey Coleman
  Koch & Stone

  
	
   

  	
   

  	
  2345 Grand Boulevard,
  Suite 2100

  
	
   

  	
   

  	
  Kansas City, Missouri 64108

  
	
   

  	
   

  	
  Attn:     Douglas S. Stone

  
	
   

  	
   

  	
  Telephone:   (816) 842-3636

  
	
   

  	
   

  	
  Telecopier:   (816)
  842-2414

  



 


37

















 


	
  Tenant:

  	
   

  	
  c/o The Davis Companies

  
	
   

  	
   

  	
  2121 Avenue of the Stars

  
	
   

  	
   

  	
  Suite 2800

  
	
   

  	
   

  	
  Los Angeles, California 90067

  
	
   

  	
   

  	
  Attn: Michael Colleran

  
	
   

  	
   

  	
  Telephone:   (310)
  551-1470

  
	
   

  	
   

  	
  Telecopier:   (310)
  286-9359

  
	
   

  	
   

  	
   

  
	
  With copies to:

  	
   

  	
  Katten, Muchin & Zavis

  
	
   

  	
   

  	
  525 West Monroe Street

  
	
   

  	
   

  	
  Suite 1600

  
	
   

  	
   

  	
  Chicago, Illinois 60661

  
	
   

  	
   

  	
  Attn: David Bryant

  
	
   

  	
   

  	
  Telephone:   (312)
  902-5200

  
	
   

  	
   

  	
  Telecopier:   (312)
  902-1061

  



 


Notice given in any other manner will be
deemed delivered when actually received by the party to whom the notice is
addressed. Any party may change its address by giving the other
parties ten (10) days advance written notice of such change.


 


17.2         Police Power
Limitation. Notwithstanding anything
to the contrary set forth in the Project Documents with respect to the City’s obligations, the City’s obligations under the Project Documents shall not be construed to require the City to
surrender or waive its police powers or contract away any of its governmental
functions in violation of Missouri law. The parties intend the City’s
obligations under the Project Documents shall be interpreted and construed in
light of the inherent limitations placed upon the City as a municipal
corporation which requires it to retain such powers and does not permit the
City to contract away those powers that are exclusively a legislative prerogative.


 


17.3         Failure to Perform
By the City. The City shall not be
deemed to be in default in the performance of any of its obligations under this
Lease unless the City’s failure to perform such obligation continues for a  period
of thirty (30) days after written notice to the City specifying the nature of such non-performance, provided
that if such failure to perform is of such a nature that it cannot reasonably
be cured within such thirty (30) day period, then so long as the City commenced
cure efforts within the thirty (30) day period and diligently pursues
completion of such cure, the thirty (30) day period will be extended for such
period of time as is reasonably necessary to complete such cure. Tenant shall
have no right to terminate this Lease for any default or non-performance by the
City under this Lease, except by operation of law in the event Tenant becomes
owner of fee simple title to all or any part of the Project Site, nor any right
to offset.


 


17.4         No Liability. Tenant shall not assert or seek to enforce any claim for breach of this Lease against any of the assets of the


 


38

















 


City other than the City’s interest in the
Project Site for the satisfaction of any liability or claim against the City
under this Lease. Tenant agrees to look solely to such interests for the
satisfaction of any liability or claim against the City under this Lease. It is
specifically agreed that in no event whatsoever shall the City, or any of its
officers, officials, servants or agents, ever be personally liable for any such
liability, except, with respect to the City only, as expressly set forth in the
first two sentences of this Section.


 


17.5         Force
Majeure.   If either Tenant or the
City are delayed, hindered in or prevented from the performance of any act required under
this Lease by. reason of weather, fire, acts of God, strikes, lock-outs, inability to procure materials,
failure of power, riots, insurrection, war, litigation which is being pursued
or defended by Tenant, or the failure of another party to this Lease to perform
an act required of it which is required in order for the party who was prevented from
acting to act and/or other
matters beyond the reasonable control of the party who is to act, then
performance of such act shall be excused for the period of the delay and the
period for the performance of any such act shall be extended for a period
equivalent to the period of such delay.


 


17.6         Certificates.   Either
party will at any time and without charge, within ten (10) days after
written request by the other, certify by written instrument as to: whether this Lease has been supplemented
or amended, or if so, in what manner; the validity of this Lease as of the time
the request is received; the existence of any Default by either party and any
offsets, counterclaims or defenses on the part of the other party; the
Commencement and Expiration Dates; and such other matters as might be
reasonably requested. Such certification may be delivered to any person
specified in the certificate.


 


17.7         Waiver
of Jury Trial and counterclaims. The City and Tenant waive trial by jury in
any action, proceeding or counterclaim brought by either of the parties against
the other in connection with any matter whatsoever arising out of or in any way
connected with this Lease, Tenant’s use or occupancy of the Project Site, any
claim of injury or damage or the landlord-tenant relationship between the
parties. Tenant expressly waives the right to impose any counterclaims in any
action or proceeding in which the City seeks possession of the Project Site
and/or the Improvements and Personalty, except solely those counterclaims which
but for such imposition would, pursuant to applicable law or rules of
court, be forever barred.


 


17.8         Binding
Effect. This Lease will be binding upon the parties and their respective
successors and permitted assigns.


 


17.9         No
Joint Venture Or Partnership. Under no circumstances shall the Project
Documents or any actions of the parties in


 


39

















 


furtherance of the Project Documents
be construed to create either a
partnership or a joint venture between the City and Tenant, the existence of
the same being specifically denied.


 


17.10       Attorneys Fees. If any party
institutes litigation to enforce its rights under or relating to a breach of this Lease, the
prevailing party will be
entitled to recover from the other party
reasonable attorneys’ fees and court costs.


 


17.11       Governing
Law. This Lease will be construed and interpreted in accordance with the
laws of Missouri, excluding its conflict of law provision.


 


17.12         Amendments. This Lease together with the Project Documents constitute the complete and exclusive
statement of the agreement between the parties with respect to the development
of the Riverboat, Gaming Project.


 


17.13       Entire
Agreement. The Project Documents supersede all prior written and oral statements, representations, communications of
any type, covenants, conditions, warranties and/or presentations with respect to the development of the
Riverboat Gaming Project and no representation, statement, communication of any
type, condition, warranty or presentation
not contained in the Project Documents shall be binding on the parties or have
any force or  effect whatsoever. This Lease may not be amended or
modified except by a written instrument signed by both the City and Tenant.


 


17.14       Multiple Originals. This Lease may be executed in  multiple
original counterparts. Each counterpart will be deemed an original, and when
the counterparts are taken together, they will be deemed to be one
and the same instrument.


 


17.15       Severability.
If any provision of this
Lease or its application to any person
or circumstances is to any extent held to be invalid, illegal or unenforceable,
the remainder of this Lease, or the application of such provision to other
persons or circumstances, will not be affected, and each provision of this
Lease will be valid and enforceable to the fullest
extent permitted by law.


 


17.16       Interpretation. Where required for proper interpretation, words in the singular will include the plural,
and words of any gender will
include all genders. The descriptive
headings of the articles and sections of this Lease are for convenience only and
will not control or affect the
meaning or construction of any of the provisions of this Lease.


 


17.17       Waiver. No
waiver by any party of any of its rights or remedies under this Lease will be considered a waiver of any other or subsequent right or remedy. No waiver by any party of any


 


40

















 


of its rights or remedies under this Lease
will be effective unless evidenced
by a written instrument executed by the waiving
party.


 


17.18       Memorandum of Lease.  At any time and from time to time, at the request of either party, the parties shall execute, deliver and record, at Tenant’s expense, a Memorandum of Lease
with respect to this Lease.


 


EXECUTED as of the date first above written.


 


	
   

  	
   

  	
  “THE CITY”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE CITY OF BOONVILLE, MISSOURI

  
	
  [SEAL]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
  By:

  	
  /s/ Bernard Kempf

  
	
   

  	
   

  	
   

  	
  Bernard Kempf, Mayor

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
  City Clerk

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  APPROVED AS TO FORM AND LEGALITY

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
  City Counselor

  	
   

  	
   

  	
   

  



 


 


	
   

  	
   

  	
  “TENANT”

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DAVIS GAMING BOONVILLE, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Michael Colleran

  
	
   

  	
   

  	
   

  	
  Michael Colleran, President

  
					



 


41